Law campaign
Vision for promotion: ADR in Bangladesh
Tarek Mahmud
The courts of Bangladesh, being run through the adversarial nature of legal system, and being comparatively smaller in number in proportion to the terrifying number of cases filed, are always spilled over by immense number of cases. The impacts are many-fold but visibly, the everlasting procedure to dissolve a particular case becomes so painstaking and resource hungry (money, time, energy, work efficiency etc.) that true spirit of justice seeker gets relinquished over time. As the famous legal phrase goes “justice delayed, justice denied”, most of the legal applications become signs of the incapacity of the legal system and a cynical indication of the judiciary.
By any means, it is the duty of the judiciary to ascertain justice throughout a proper mechanism and within a reasonable period of time and within the economic capacity of the justice seeker. The charm of Alternative Dispute Resolution (ADR) stands here, providing viable means to reach justice for everyone. ADR does not imply threat to the existing legal system; rather it paves a parallel lane in legal highway for smoothest transmission or solution of cases in less time consuming and economical transport.
What and why ADR?
ADR is a well known form of justice mechanism prevailing in human society for a long time. It is believed that even before the formal law of any community came into existence, solving any issue was natural throughout mutual discussion or bargaining of any form. If we wonder around, we will see that from grocery to super mall, from street-side hawker to the biggest shopping giant, from your kids' admission to your promotion at workplace, from the smallest fraction of your town's territory to complex diplomatic channeling, everywhere, Alternative way to reach to the targeted outcome is always in use. Legal arena is no exception.
Alternative Dispute resolution is a system in which a dispute is expected to be resolved throughout a wide variety of flexible and seeker-friendly options available. The methods of ADR are commonly the Mediation, Negotiation, Conciliation, Arbitration, Early Neutral Evolution and Expert's advice. These methods can be used for a vivid range of disputes raised out of family issues, consumer dissatisfaction and claims, neighborhood disagreement, national and international business disputes, racial or other form of discrimination, negligence of any kind, administrative mishandling and so many more. The administering principles of ADR are convincingly simple, faster then traditional legal correspondence, inexpensive, bearers of larger territorial jurisdiction and finally, they contain the maximum proximity of success. The outcome is, at the same time, much easier to execute and convenient for both the parties. In practice, ADR creates an even ground for both the parties by offering a 'win-win' package where both the parties gets rational and winsome share of the outcome while the parties of a tradition legal proceeding get “Zero-sum” result, where one of the parties must loose the game absolutely. So, in this angle of viewpoint, ADR gains tremendous acceptability in social class. Throughout the world, ADR is extensively used maintaining the equivalent pace of legal proceeding. Countries like USA, UK, France, Norway, Germany and countries of Asia pacific region such as Srilanka, Pakistan, India, Bangladesh have been using ADR for a considerable span of years.
Incorporation and scope of ADR in Bangladesh
In recent years, some schemes of Alternative Dispute Resolution have been integrated in some of the Laws of Bangladesh. One is the Code of Civil Procedure (Amendment) Act, 2003 in where Mediation and Arbitration processes have been incorporated for faster relief of civil cases. The Muslim Family Courts Ordinance 1985 is reframed with ADR technique both in its pre-trial and post-trial stages to reach to a feasible decision in issues related Muslim marriage, restitution of conjugal rights, divorce, maintenance, guardianship and custody of the offspring's . The “Artha Rin Adalat Ain” 2003 or the Money loan Court Act, 2003 which deals with the unpaid debts of individuals or organizations also has the provisions of ADR titled as settlement of Conference and Mediation to manage such kind of cases more efficiently. The Village Court Act, 2006 has the provisions containing formation and strategies to dissolve any dispute within its jurisdiction in modest and flexible and non arbitrary way. Furthermore, the fully-functional Arbitration Act, 2001 is a comprehensive solution for both the national and international business Dispute with the periphery of the country.
Besides working in judicial organs, ADR mechanism has also been used in providing justice through private initiatives. Several Non-Governmental Organizations namely Madaripur Legal Aid Association (MLAA), Bangladesh Legal Aid Services Trust (BLAST), Ain O Salish Kendra (ASK) and others are working to synergize the non-arbitrary and mutual accord basis techniques of ADR throughout people of different classes of Bangladesh. Yet now, these organizations are yielding progresses focally on volunteer advertising of legal assistance of alternative kinds and they have to a certain extent been successful connecting people to alternative route to justice.
Some observations
Nevertheless ADR is visibly effective throughout both courts and social limbs, this unique system lacks proper spotlight. The pitfalls are-
A formidable number of promoters and vocals of legal system are unaware or partially aware about the inception and the privileges of this system, though infrequently, attempts have been made by the benefactors via workshops or trainings to familiarize the idea to both the judicial service providers as Judges and Lawyers and the service takers alias the people. As both of these classes do not have the insight of this comparatively newer system, they fell uncomfortable adopting it.
The information relating the concept of ADR, its usability, benefit points are not disseminated among the people. At the same time, legal professionals are not suggesting about solving the dispute through this process as they are in fear of a minimized income due to the philanthropic attribute of ADR.
As of Criminal cases, ADR is yet to be formularized for attachment. Though compounding of cases under the code of Criminal procedure, 1872 might be treated as a faster process to mitigate issues, revolutionary steps for integration of ADR in Criminal cases are staggering need of the age.
Lastly, a unified management center for ADR management is imperative now where the ADR seekers as well as providers and researchers can have interaction and assistance.
Reminiscent remarks
In these regards, the following measures may be taken for the greater promotion of Alternative Dispute Resolution covering the areas of the country-
The resource personnel, Law officer, legal professional and all other classes of people engaged with legal occupation have to be encouraged to adapt with the theme of ADR; special incentives are to be taken for them so that they may feel rewarded as the ambassadors of this procedure.
Dissemination of information related ADR has to be ensured throughout different broadcasting Medias so the common people get a translucent picture of ADR and its benefits.
The ADR may also be encouraged to be in practice in private initiative. If it turns into a beneficial form of profession in terms of honorarium like as legal advocating, more employment opportunities would be created and more people will get involved. Here, the example of United Kingdom may be taken into consideration where currently 1400 private firms have been functioning to promote ADR. Besides this, new job designations as mediator, arbitrator, negotiator, conciliator etc. will need trainings and educational traits which will create further interest and opportunities. More NGOs can be brought in to promote ADR.
Not as an academic course only but Alternative dispute resolution can be included as a complete academic subject to be studied in both Honors a Masters level. A good number of countries have ADR in their universities as a subject to be taught in those levels as well as doctoral levels.
Prospective fields such as criminal legal system may be analyzed to have comprehensible ADR provisions in them so that the ADR may be used in a versatile area.
To finish, it may be said that the ADR system is raising popularity over years. Number of countries has been utilizing this system and thus getting immensely benefited. We hope, we can get the same extract out of this outstanding form of practice.
The writer is Lecturer, Department of Law, Northern University Bangladesh.
